Roberson v. State Ex Rel. CYFD

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40850
VICTOR ROBERTSON,
Plaintiff-Appellant,
v.
NEW MEXICO CHILDREN, YOUTH
& FAMILIES DEPARTMENT,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Denise Barela Shepherd, District Court Judge
The Gilpin Law Firm, LLC
Kenneth C. Detro
Donald G. Gilpin
Albuquerque, NM
for Appellant
Keleher & McLeod, P.A.
Sean Olivas
Chris R. Marquez
Albuquerque, NM
for Appellee
MEMORANDUM OPINION
HENDERSON, Judge.
{1} Plaintiff appeals from an order granting summary judgment in favor of Defendant.
We issued a calendar notice proposing to affirm. Defendant has filed a memorandum in
opposition, which we have duly considered. Unpersuaded, we affirm.
{2} In his memorandum in opposition, Plaintiff continues to argue that the district
court erred when it granted summary judgment in favor of Defendant, which we
proposed to affirm on the basis that Plaintiff failed to establish a prima facie case of
discriminatory termination. [CN 1-7] Although Plaintiff has attempted to provide more
facts and context regarding the events that occurred during the two trainings and his
subsequent termination, we remain unpersuaded.
{3} Plaintiff asserts that there are genuine issues of material fact such that his case
should have gone to trial. [MIO 8-12] In our calendar notice, we suggested that Plaintiff
failed to establish a prima facie case for discriminatory retaliation because he did not
present sufficient evidence to meet the fourth element to show he had been
discriminated against. [CN 4] See Smith v. FDC Corp., 1990-NMSC-020, ¶ 11, 109 N.M.
514, 787 P.2d 433 (stating that “[a] prima facie case of discrimination may be made out
by showing that the plaintiff is a member of the protected group, that [the plaintiff] was
qualified to continue in [the] position, that [the plaintiff’s] employment was terminated,
and that [the plaintiff’s] position was filled by someone not a member of the protected
class”); id. (explaining that the fourth element can also be satisfied with evidence that
“[the plaintiff] was dismissed purportedly for misconduct nearly identical to that engaged
in by one outside of the protected class who was nonetheless retained”). In his
memorandum in opposition, Plaintiff concedes that after he was terminated, the
“position was left vacant” [MIO 8], and that he “made no . . . showing within the record
proper” that he was dismissed for conduct that was nearly identical to one of the other
employees in the training who was outside the protected class, and who retained their
employment [MIO 11].
{4} Plaintiff, however, asserts that Smith “allows that [a] subtle confluence of facts
may illustrate discrimination in a manner that does not fit with the fourth element of the
McDonnell [Douglas] framework.” [MIO 13] See Smith, 1990-NMSC-020, ¶ 11
(acknowledging that “[a] prima facie case may also be made out through other means;
not all factual situations will fit into any one type of analysis, although unlawful
discrimination may nevertheless be present”). Plaintiff points to federal case law in
support of his contention that discriminatory termination can be shown through
circumstantial evidence and that he “did not need to rely on the McDonnell Douglas
presumption to establish a case for the jury.” [MIO 13-14] Such authorities, however, do
not govern our analysis when we have relevant and applicable New Mexico case law
available. See Alexander v. Delgado, 1973-NMSC-030, ¶ 9, 84 N.M. 717, 507 P.2d 778(“[T]he Court of Appeals is to be governed by the precedents of [the New Mexico
Supreme Court].”).
{5} Nevertheless, we consider the additional facts Plaintiff has set forth in his
memorandum in opposition to determine whether they are sufficient to satisfy the fourth
element of the prima facie case. Plaintiff asserts that his account of what occurred
during the two trainings is different than what Defendant claims happened. [MIO 15] He
contends that Defendant’s account is subjective and relies on “prejudicial language.”
[MIO 15-16] Despite these assertions, however, Plaintiff has not demonstrated that he
presented sufficient evidence to establish the fourth element of the prima facie case for
discriminatory retaliation. See Smith, 1990-NMSC-020, ¶ 11; see also Garcia v. Hatch
Valley Pub. Schs., 2018-NMSC-020, ¶ 31, 458 P.3d 378 (holding that the plaintiff failed
to present sufficient evidence to establish a prima facie case of discriminatory
retaliation). Rather, Plaintiff proffered evidence purporting to show that he was treated
less favorably than the other employees in the training because he was let go, “while
others[] not in his age and race were retained.” [RP 83] As stated in our calendar notice,
Plaintiff’s evidence consisted of testimony where he acknowledged that he had no
evidence that he was terminated because of his age and that his evidence that he was
terminated for his race was “because [he] was the only black person in that class.” [RP
67; CN 7] This evidence, however, did not show that one or more of the other
employees’ performance in the trainings was “nearly identical” to that of Plaintiff’s
performance. See Smith, 1990-NMSC-020, ¶ 11; Garcia, 2018-NMSC-020, ¶¶ 31-32.
As such, we conclude that Plaintiff’s evidence is insufficient to rule out the most
common nondiscriminatory reasons for his termination, and does not support an
inference that he was terminated because of his race and age.
{6} Finally, this Court’s proposed summary disposition proposed to conclude that
Plaintiff did not establish a prima facie case of retaliation and the district court did not err
in denying his motion for summary judgment on that basis. [CN 7-9] Plaintiff has not
responded to our notice of proposed summary affirmance on this issue in his
memorandum in opposition. See Taylor v. Van Winkle’s IGA Farmer’s Mkt., 1996-
NMCA-111, ¶ 5, 122 N.M. 486, 927 P.2d 41 (recognizing that issues raised in a
docketing statement, but not contested in a memorandum in opposition are
abandoned).
{7} For the reasons stated in our notice of proposed disposition and herein, we affirm
the district court’s order granting summary judgment in favor of Defendant.
{8} IT IS SO ORDERED.
SHAMMARA H. HENDERSON, Judge
WE CONCUR:
J. MILES HANISEE, Judge
KRISTINA BOGARDUS, Judge